Opinion 15-212

December 3, 2015

Digest:         A judge need not disqualify him/herself from cases involving lawyers who sought to contribute to the judge’s spouse’s recent political campaign, provided the judge believes he/she can be fair and impartial.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.5; Opinions 10-135; 06-147; 04-41; 89-48; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         An attorney recently advised the inquiring judge that the attorney and his/her law firm tried to contribute to the judge’s spouse’s recent political campaign, but the judge’s spouse’s campaign committee declined the contributions and returned them without explanation. Now, the attorney sent the inquiring judge a letter asking him/her to recuse from the law firm’s cases for three years. The letter includes voluminous attachments, including a publicly available list of the judge’s spouse’s campaign contributors. The judge played no part in the campaign and states he/she can be fair and impartial in all cases of the attorney and the firm, but asks if disqualification is nonetheless required.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself in a case where his/her impartiality might reasonably be questioned (see generally 22 NYCRR 100.3[E][1]).¹

         The Committee has said a judge need not disqualify him/herself solely because he/she learns the identity of his/her campaign donors from a pro se litigant’s motion papers, provided the judge believes he/she can be fair and impartial (see Opinion 10-135). The Committee noted this result is clearly apt “where the party seeking the judge’s disqualification...., by virtue of including the names of the contributors in motion papers, may very well have caused the judge to know that the attorneys contributed to his/her campaign” (id.).

         Here, it is even less reasonable to question the judge’s impartiality, as these contributions were to the judge’s spouse’s political campaign, in which this judge did not participate.² That the judge’s spouse’s campaign committee ultimately declined the attempted donations and returned them to the attorney and firm does not provide a reasonable basis to question the judge’s impartiality, especially where, as here, the funds were returned without explanation (see 22 NYCRR 100.3[E][1]).

         As there is no reasonable basis to question the judge’s impartiality under these facts, and the judge has determined he/she can be fair and impartial towards the attorney and his/her law firm, the judge may preside.

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         ¹ Where, as here, the specific disqualifying circumstances set forth by rule or law do not apply (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14), the key question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under this standard, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

           ² Of course, a judge is not authorized to engage in political activity or attend political events merely because his/her spouse is running for elective public office (see generally 22 NYCRR 100.5; Opinions 06-147; 04-41; 89-48).